Kirby Lumber Co. v. Dickerson

• Decision Date: 07 April 1906
• Citation: 94 S.W. 153
• Parties: KIRBY LUMBER CO. v. DICKERSON.
• Court: Texas Court of Appeals

94 S.W. 153

KIRBY LUMBER CO. v. DICKERSON.

Court of Civil Appeals of Texas.

April 7, 1906.

Error from District Court, Sabine County; Tom C. Davis, Judge.

Action by Leonard Dickerson against the Kirby Lumber Company. From a judgment for plaintiff, defendant brings error. Reversed and remanded.

J. T. Beaty, O. T. Webb, Hamilton & Cappel, and Andrews, Ball & Streetman, for plaintiff in error. Davis & Davis and Blount & Garrison, for defendant in error.

REESE, J.

Leonard Dickerson sued the Kirby Lumber Company to recover damages for personal injuries, and upon trial before a jury recovered judgment for $5,750, and defendant appeals.

It was alleged, in the petition, that appellee was in the employ of appellant and was engaged, under direction of those in authority over him, in stacking lumber. While so engaged, and while coming down off of the lumber stack, the foundation of the stack gave way, and thereby appellee was violently thrown against another lumber stack. That the first stack fell upon him, inflicting upon him permanent and serious injuries, the nature of which are fully set out. It was alleged that appellee knew nothing of the unsafe condition of the foundation of the lumber stack. The manner in which the foundation was constructed and the defect or vice in such construction are fully explained. It was averred that this defective, unsafe, and dangerous condition was known to appellant, or could have been known by the use of ordinary care and diligence. Negligence is charged against appellant in the matter of the construction of the foundation of the lumber stack. Appellant answered by general demurrer, which was overruled, and by several special exceptions, some of which were sustained and some overruled, and which it is not necessary to further mention. Appellant also pleaded a general denial, contributory negligence, and assumed risk. The evidence discloses substantially the following facts: Appellee was in the employ of the appellant at the time of the accident. He had been at work three or four days, and had been engaged in stacking lumber. He had some previous experience at the business. To make a stack of lumber a foundation is first built of pieces of lumber resting on the ground. This foundation is considerably higher at one end than the other, in order that the lumber pile, when finished, may shed the water. In the process of stacking one man stays on the ground on the "dolly-way" and hands the pieces to a man on the top of the pile, who places them in the stack. Appellee and another man were so engaged at the time, and these two would alternate; that is, first one and then the other would be on top of the stack. Appellee had been at work on top, and in order to exchange with his fellow workman was coming down off of the pile at the higher end, when the foundation upon which the stack was built gave way at one of the corners at this end, causing the whole stack to topple over. Appellee was thrown against another lumber stack and caught between the two. One of his legs was broken in three places, and he was otherwise seriously injured. The case turned mainly upon the question of whether the accident was caused by a defective construction of the foundation of the lumber stack, and of negligence vel non on the part of appellant in such construction. The evidence mainly relied upon to show the defective construction was that which showed that the supports of the lumber stack at the southwest corner, where the stack gave way, were placed on the bare ground and at or very near the margin or bank of a small running branch, where the ground was loose and soft.

In view of the disposition which other assignments of error required to be made of the case, we will not discuss the first four assignments, which attack the action of the court in overruling appellant's motion for a new trial upon the facts. The fifth, sixth, and seventh assignments of error complain of the error of the court in regard to the following paragraphs of its general charge to the jury: "On the question of negligence, you are charged that it is the duty of those operating a saw mill and stacking lumber in its yards, through their agents or managers, to provide reasonably safe foundations for its lumber stacks. Such reasonably safe foundations as is commonly used by skilled and experienced millmen, and such as they could, by the use of ordinary skill, provide, and a failure to so do and provide would be in law negligence." "The defendant company was required, and it was its duty in law, to provide a reasonably safe foundation for its lumber stacks, upon which its employés stacked their lumber, the foundations to be of that kind and construction as was ordinarily deemed safe for the purposes of stacking lumber and to keep the same in safe repair as far as ordinary skill and diligence could do, and, if the defendant company did this, then it could not be held liable, and, if you so find, you will find for the defendant." "But if the foundation under the lumber pile was safe and sufficient, so far as ordinary skill and diligence could provide or ascertain, then the defendant would not be liable, and, if you so find, let your verdict be for the defendant." As presented in these instructions, the duty imposed upon appellant was to provide a reasonably safe foundation for its lumber stack, and such as is commonly used by skilled and experienced millmen, and such as they could, by the use of ordinary skill, provide. The jury is instructed that the failure to do so would be, in law, negligence. This is the substance of the paragraphs of the charge complained of in the fifth assignment, and the same general principle, as to the duty of appellant, is presented in the other paragraphs referred to. The duty of the employer is made absolute, and although he may have exercised not only ordinary care, but the highest degree of care, if the foundation for the lumber stack proved to be not reasonably safe and not such as he could by the use, not of ordinary care, but of ordinary skill, provide, he is guilty of negligence and must answer for the consequences. The same obligation is imposed upon the employer to keep the foundation in safe repair, as far as ordinary skill and diligence could do, regardless of the amount or degree of care actually exercised by him. That this is a more onerous responsibility upon the employer than the law imposes is settled by the decisions of the Supreme Court of this state. In the practical application of this measure of duty in the present case, appellee would have only been required to show that the foundation of the lumber stack was not reasonably safe, and that it was possible, by...